Alternative methods of dispute settlement (ADR) in general, and mediation in particular, are increasingly popular among the majority of today s major world law countries. However, in France, the consistent use of one method of ADR barely paved the way for the wider acceptance of the other. The two most prominent alternative dispute resolutions processes are known as arbitration and mediation.
Although both are highly common, many questions arise regarding the fairness of these alternative dispute resolutions processes. Usually, arbitration is resorted to when there is a need for an unbiased decision. For instance, if both parties are in conflict over a business contract, arbitration provides the neutral forum wherein the concerns of both parties are considered and a reasonable solution is determined. On the other hand, mediation is usually resorted to when parties cannot agree on the solution and a third party, a mediator, helps solve the conflict by discussing issues between the two parties in good faith.
During mediation, the mediator’s task is to objectively look at each of the parties’ issues and communicate a decision to the parties based on the facts discovered during the investigation. Mediation differs from arbitration because a mediator is not required to make decisions for the parties or carry out their legal representation. However, a mediator plays a significant role in helping to alleviate the harmful effects of prolonged litigation by steering clear of emotional responses on the part of either side. As such, the mediation process can be an effective tool for both sides.
A standard mediator process begins by identifying the parties involved in the case. Upon identification, the parties are taken through an initial round of questioning to determine the relevant facts that may be relevant to the case. After the preliminary round, the mediator then systematically explores the facts with the parties and attempts to identify the key points of disagreement so that an amicable resolution can be reached. In instances where key points cannot be agreed upon, a third party, usually a neutral third party is appointed to mediate the case in place of the parties.
In cases where the parties cannot agree on key information, such as the facts of the case, a mediator may work with each party to develop a customized dispute resolution protocol. The protocol is designed to guide the mediator as he/she engages in the process with each party, providing them with the tools necessary to address their concerns. Developing this protocol enables the mediator to provide the parties with an experience they will find helpful in resolving the matter.
Once the parties view the documentation that has been developed through the protocols, they are ready to commence the mediating process. In the course of this process, the mediator is expected to collect information from both parties and all pertinent documents. In addition, he/she must determine whether or not each party is cooperating with the mediation process. In addition, the mediator is expected to compile all documentation pertaining to the case, as well as organize related information into a cohesive document.
After the mediator has gathered all information regarding the case, he/she begins to interview each party, asking questions regarding the parties’ view of the case. This portion of the interviewing process is called discovery. Prior to interviewing each party, the mediator must develop a list of questions that need to be asked. Included in this list are questions regarding the length of time the parties have had the litigation, whether any witnesses have been interviewed, etc. Once the list is completed, it is then time for the interviews. Generally, these interviews are conducted by the mediator, although they may be conducted by either party or by an independent third party, such as an arbitrator.
Once interviews have taken place, the mediator will continue the process with each party providing his/her responses to the questions being asked. Generally, once the mediation process has concluded, a written report is provided to the parties detailing the issues discussed during the meeting. However, depending on the mediator, this report may be presented in person, by mail, or online. Mediation is a very involved process, but it is typically easier to work through when the parties can reach an agreement prior to the mediation begins.
Mediation in France has attracted a number of professional bodies, who have created guidelines for Mediation. These include the Mediation and Arbitration Association France (MAA France), the French Mediation Association (FMIA France), the French Mediation Committee (EMC) and the French Mediation Code of Conduct (MCOC). These organisations have developed their own bodies of knowledge and standard practice for Mediation Law. They encourage the use of arbitration as a preferred way to resolve commercial disputes.
Other countries also have some very specific regulations concerning Mediation. In certain countries, like Ireland and the UK, the Mediation Council, which is responsible for the regulation of Mediation in the UK, requires that disputes be settled by arbitration rather than by the courts. Both the EMC and the AMSA encourage the use of mediation as a way to resolve commercial disputes. In some other countries, like Canada, the Arbitration Rule, which is similar to the Restricted Areas Rule in the US, does not apply to non-IC divisions.
There is a difference between the different types of Mediation, but generally, all are non-legal types of dispute resolution. Therefore, mediation in France is not a legal solution, but an alternative to the legal solution. Therefore, it is not considered by the courts. This has led to many people contacting a mediator, either as a form of alternative dispute resolution (ADR), or as part of the legal solution.